P. v. Gunner
Filed 4/12/07 P. v. Gunner CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, Plaintiff and Respondent, v. CALVIN EUGENE GUNNER, Defendant and Appellant. | E039925 (Super.Ct.No. RIF115553) OPINION |
APPEAL from the Superior Court of Riverside County. Dallas Holmes, Judge.
Affirmed with directions.
Mark S. Devore, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, and Kristen K. Chenelia, Deputy Attorney General, for Plaintiff and Respondent.
A jury found defendant and appellant Calvin Eugene Gunner guilty of assault with force likely to cause great bodily injury (Pen. Code, 245, subd. (a)(1), count 1),[1]dissuading a witness ( 136.1, subd. (c)(1), counts 4 & 11), inflicting corporal injury upon a spouse ( 273.5, subd. (a), counts 7 & 9), and false imprisonment ( 236, count 13). Defendant admitted the allegations that he committed three of the offenses while released from custody prior to the judgment becoming final on a primary offense. ( 12022.1.) Defendant also admitted that he had two prison priors ( 667.5, subd. (b)), a prior serious felony offense ( 667, subd. (a)), and a prior strike conviction ( 667, subds. (c) & (e)(1) & 1170.12, subd. (c)(1)). The trial court sentenced defendant to a total term of 17 years 8 months.
On appeal, defendant contends: 1) there was insufficient evidence to support his conviction of assault with force likely to cause great bodily injury; 2) the minute order and abstract of judgment incorrectly show that the court imposed two-year terms on counts 11 and 13, pursuant to section 12022.1, and that the court imposed a five-year sentence enhancement under section 667.5, subdivision (b), rather than section 667.5, subdivision (a). The People concede that the minute order and abstract of judgment should be corrected. Otherwise, the judgment is affirmed.
FACTUAL BACKGROUND
February 4, 2004, Incident
The victim was living in an apartment with her two teenage daughters in 2004. At 11:10 p.m., on February 4, 2004, Officer Juan Valdivias responded to a domestic violence call at the victims apartment. The victim told Officer Valdivias that defendant had been living with her for the past three months. She said that she and defendant had an argument because he got up to go to the bathroom in the nude, and the victims daughter was in the bathroom. Defendant told the victim that she should have told him that someone was in the bathroom. The victim responded that, since the light was on, he should have seen that someone was in the bathroom.
Officer Valdivias observed that the bedroom was ransacked. There were clothes on the bed that were cut and torn. The DVD player had a pry mark on it, and the VCR looked like it had something jammed inside of it. The victim told Officer Valdivias that defendant placed his hands around her neck and started squeezing her. Defendant also took a shirt, wrapped it around her neck, and started to pull the ends, in order to choke her. Further, defendant took a box cutter, placed it directly against her neck, and said he was going to kill her. Officer Valdivias testified at trial that the victim told him she received an injury on her forehead when defendant threw a plate of food at her. Officer Valdivias observed that the victim had a red, raised bump on the side of her forehead that was three inches in diameter. She also had scratch marks on her chest and red marks on her neck.
Officer Valdivias tape-recorded his interview with the victim because he knew from experience that victims of domestic violence usually change their story at trial, if they reconcile with their abusers. The tape-recorded interview was played for the jury and admitted into evidence.
At trial, the victim said she lied to Officer Valdivias that night when she told him that the injury to her forehead was caused by defendant throwing a plate at her during their fight. She said she concocted the whole story to get defendant in trouble because he was going to leave her. The victim testified at trial that the fight started when she accused defendant of cheating on her. She said she attacked him by kicking him. As he approached the door to leave, she blocked it. She added that defendant was holding a plate and eating. She was standing about two and one-half to three feet away from the plate, and she kicked it. The plate flew straight up and it her on the forehead. The victim testified that, during the fight, defendant did not strike her or hit her in any way.
The victim further testified that she took all the things that defendant had bought her and put them in a pile. She took a box cutter and cut everything up. After defendant left, she started planning the lie that she was going to tell the police. While waiting for the police to arrive, she choked herself with her shirt to make a mark on her neck, in order to convince the police that defendant had attacked her.
March 5, 2004, Incident
On the afternoon of March 5, 2004, Officer Richard Heard responded to a domestic violence call at the victims apartment. The victim appeared flustered, hot, sweaty . . . [and] somewhat excited. Officer Heard observed that the left side of her head and her jaw were swollen. She was also missing a patch of her hair braids over her left ear. The victim told Officer Heard that defendant lived with her. She was upset that he had not gotten up that morning to look for a job. That afternoon when he got dressed, he did not dress appropriately to look for a job. When he asked her for the car keys, they got into an argument. Defendant attacked her, threw her on the ground, held her by the hair, and hit her.
At trial, Darius Ballard testified that he lived with defendant and the victim at the time of the attack. He was outside on the porch that day when he heard defendant and the victim arguing. He came inside and saw the victim lying on her back on the floor. Defendant was standing over her. Ballard thought defendant was attacking her because she was screaming; so, he grabbed defendant and pulled him back.
The victim also testified that she lied to Officer Heard about what happened. She said that she kicked defendant numerous times and slapped him. During their scuffle, she felt a tug on her hair because her braids were caught in between her and him. Several of her braids came out. However, defendant did not try to strike her.
After the March 5, 2004, incident, defendant was incarcerated. In April 2004, the victim married defendant while he was in jail. In October 2004, he was released from jail and moved back in with the victim.
December 24, 2004, Incident
On December 24, 2004, defendant and the victim started arguing after defendant accused her of cheating on him with other men. The victim left the apartment and came back a few hours later. Defendant was still angry. He punched her, choked her, and placed his knee against her stomach. The victims mother called her the next morning, and the victim told her what had happened. Her mother called the police.
Dechante Manier, a community service officer with the Moreno Valley Police Department, arrived at the victims apartment to take photographs of her injuries. She described the victim as very distraught and in a lot of pain. The victims hair and clothes were disheveled. Manier observed marks on the victims neck and bruises on her neck, thigh, and arm.
At trial, the victim testified that defendant came home smelling like alcohol. She got mad and got physical with him. She said that he did not get physical with her, though.
Prior Acts of Domestic Violence
At trial, defendants former girlfriend testified that, when they were dating, defendant regularly shoved her, pushed her, choked her, and grabbed her by the hair.
ANALYSIS
I. There Was Sufficient Evidence to Support Defendants Conviction for Assault With Force Likely to Produce Great Bodily Injury
Defendant contends there was insufficient evidence to support his conviction for assault with force likely to produce great bodily injury because there was no evidence of the force he used to throw the plate or of the type of plate he threw. He also argues that the resulting bump on the victims forehead did not qualify as great bodily injury. We reject defendants claims.
A. Standard of Review
In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] Reversal on this ground is unwarranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]. [Citation.] (People v. Bolin (1998) 18 Cal.4th 297, 331.) This court may not redetermine the credibility of witnesses, nor reweigh any of the evidence, and must draw all reasonable inferences, and resolve all conflicts, in favor of the judgment. [Citation.] (People v. Poe (1999) 74 Cal.App.4th 826, 830.)
Applying this standard, defendants argument fails to persuade us that reversal of his conviction is warranted.
B. The Evidence Was Sufficient
Section 245, subdivision (a)(1), punishes assaults committed by any means of force likely to produce great bodily injury. One may commit an assault without making actual physical contact with the person of the victim; because the statute focuses . . . on force likely to produce great bodily injury, whether the victim in fact suffers any harm is immaterial. [Citation.] (People v. Aguilar (1997) 16 Cal.4th 1023, 1028.) In other words, one may commit the assault with force likely to cause great bodily injury without actually causing great bodily injury. (See People v. Rodriguez (1998) 17 Cal.4th 253, 261, superceded by statute on other grounds, as stated in People v. Luna (2003) 113 Cal.App.4th 395, 397.)
Here, the evidence showed that the victim and defendant were in a heated argument. Defendant started choking the victim by placing his hands around her neck, and squeezing and wrapping a shirt around her neck. Defendant also took a box cutter, placed it directly against her neck, and threatened to kill her. It was during this fit of rage that defendant threw a plate of food at the victims head. Common sense dictates that if one throws a plate at somebody at close range and hits the victim in the head, the victim could likely suffer great bodily injury. The jury here could have reasonably inferred from the circumstances that defendant threw the plate with significant force. The fact that the victim sustained a three-inch, red, raised bump on her head indicates that the plate was thrown with considerable force, and that the plate was somewhat heavy or large. Since defendant threw the plate at the victims head, the plate could have easily hit the victims eye, nose, or teeth and thereby caused great bodily injury.
Defendants argument that the victims bump did not qualify as great bodily injury is irrelevant. The injury that the victim suffered is immaterial to defendants conviction. (People v. Aguilar, supra, 16 Cal.4th at p. 1028.) The statute focuses on whether the force used was likely to produce great bodily injury. (Ibid.)
Viewing the evidence in the light most favorable to the judgment, as we must, we conclude that there was sufficient evidence to support defendants conviction of assault with force likely to cause great bodily injury.
II. The Abstract of Judgment and Minute Order Should Be Corrected
Defendant contends the abstract of judgment and minute order incorrectly reflect that the court imposed two-year concurrent terms on counts 11 and 13, pursuant to section 12022.1. He also contends that the abstract of judgment incorrectly indicates that the court imposed a five-year sentence enhancement under section 667.5, subdivision (b), rather than under section 667.5, subdivision (a). The People correctly concede. The abstract of judgment and minute order should be corrected to show that the court imposed a section 12022.1 enhancement only on count 9, and not on counts 11 and 13. Furthermore, the abstract of judgment should be corrected to reflect that the court imposed a five-year enhancement for a prior serious felony conviction under section 667.5, subdivision (a).
DISPOSITION
The matter is remanded to the trial court with directions to correct the abstract of judgment and minute order to show that the court imposed a section 12022.1 enhancement only on count 9. Furthermore, the abstract of judgment should be corrected to reflect that the court imposed a five-year enhancement for a prior serious felony conviction under section 667.5, subdivision (a). The amended abstract of judgment and
minute order shall be forwarded to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
J.
We concur:
RAMIREZ
P.J.
KING
J.
Publication Courtesy of California free legal resources.
Analysis and review provided by Spring Valley Property line attorney.
[1] All further statutory references will be to the Penal Code unless otherwise noted.
